Haryana

Ambala

CC/312/2014

MANJEET SINGH - Complainant(s)

Versus

BHARTI AXA INSURANCE - Opp.Party(s)

A.K.KAUSHIK

13 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 312 of 2014

                                                          Date of Institution         : 11.11.2014                                                                                       Date of                                                                decision                         : 13.09.2017

          Manjeet Singh son of Sh. Asha Singh R/o village Hassanpur, Tehsil Barara,      Distt. Ambala.

……. Complainant.

1. Bharti Axa General Insurance Co. Ltd. through its Authorized Signatory, First Floor, The Ferms Icons, Surey No.28, Next to Akme Ballet Doddanekundi, Off: outer ring road, Bangalore-560037.
2. Bharti Axa General Insurance Company Ltd. through its authorized Signatory, above the Dena Bank, Sadar Bazar.

….…. Respondents.

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                   MS. ANAMIKA GUPTA, MEMBER                 

Present:       Sh. A.K. Kaushik, counsel for complainant.

                   Sh. Mohinder Bindal, counsel for OPs.

ORDER:

                   In nutshell, brief facts of the present complaint are that the complainant is owner of a tractor Swaraj 855, Model 2010 bearing registration No.HR-54A-1260 and same was insured with the OPs vide policy No.31498703 of 14.05.2012 for a period from 15.05.2012 to 14.05.2013 and the tractor of the complainant was stolen in the night hours on 16.05.2012, when the complainant parked his tractor-trolly in a ground in front of his rental home situated in Subhash Nagar, Near Govt. School No.1, Shahbad and in the morning of 17.05.2014 at 5.a.m, when the complainant woke up, he did not find his tractor trolly. Thereafter, the complainant tried to trace out his tractor trolly but could not found and ultimately, the complainant reported the matter to the police of P.S. Shahzapur and the police registered an FIR No.115 of 17.05.2012 under Section 379 IPC and also reported the matter to the OP immediately regarding theft of his tractor trolly and the official of the OP inspected the spot and assured that the claim would be settled. Thereafter, the OP demanded written claim in the month of July-2012, which was also submitted vide claim No.C0256494 and the OP vide letter dt. 23.07.2012 informed the complainant that they have appointed M/s Vikas Kumar & Associates for obtaining required information and papers from the complainant. After investigation, the police submitted the report of untraced in the Court and on basis of the said report the learned Court of Ms. Kavita Kamboj, JMIC, Kurukshetra decided the case on 30.10.2012. After receiving all the documents, the complainant received a letter dated 21.01.2013 from the OPs wherein it has been mentioned/informed that the claim of the complainant has been repudiated by the OPs without any sufficient cause or reason and it was mentioned in the letter that earlier policy NO.081381/31/11/02/00002906 issued by M/s United India Insurance Co. Ltd. was found fake. Although the said policy was genuine one but the OPs have no concerned with the previous policy.  Further submitted that after receiving the said letter, the complainant contacted the Ops and again submitted the proof regarding genuineness of his previous policy but the OPs always putting off the matter by one way or the other and flatly refused to accede the request of the complainant. Hence, the present complaint.

2.                Upon notice, OPs appeared and resisted the present complaint by filing reply. OPs in their reply submitted that as a matter of fact the reported claim NO.C0256494 of the complainant on receipt of the intimation on 21.07.2012 was duly entertained in due course without going into the aspect of its maintainability due to late intimation but after scrutinizing and elaborating the whole facts, records and the evidence, the competent authority was compelled to repudiate the claim legally within the ambit and purview of the terms and conditions of the policy and as per insurance byelaws and inspite of the facts that the present claim was out rightly liable to be discarded due to late intimation of claim by the insured i.e. after 67 days of the alleged loss against law and in violation of the Condition No.1 of the Insurance Policy but even then the claim was entertained without discrimination and the complainant was asked to give explanation about late intimation and was even informed about the further development vide letter dated 23.07.2012. M/s Vikas Kumar & Associates was appointed to investigate the matter and to give its fact finding report about the loss and other factors related to this case. After going through the papers submitted by the insured and after scrutinizing and elaborating the whole facts, records and the evidence, it came to notice that the complainant has availed the present insurance policy under claim wrongly by misrepresentation and by playing fraud at the time of getting the renewal of previous insurance policy of this tractor in question No. 081381/31/11/02/00002906 allegedly issued by United India Insurance Co. Ltd. Zihadpur, Ghaziabad (UP) for the period from 15.05.2011 to 14.05.2012 showing it to be a continuation of his said alleged insurance policy and thus he avoided the pre-risk inspection of his said tractor No.HR-54A-1260 which was otherwise  mandatory and required under the law. But on verification from the concerned office of United India Insurance Co. ltd, it was found to be fake insurance policy which was never issued by that office/company and this fact created certain questions/suspicion about the date of loss even. Accordingly after considering this claim in the light of all these manipulations frauds and violations and also without going into any further investigation about the factum of alleged theft, the competent authority, held the said reported claim of the complainant not admissible under the insurance policy in question and the liability in respect of the same was repudiated as per the previous whereby all the benefits under the policy were liable to be forfeited in case any information given by the insured is found to be false and due to late intimation of claim against the terms and conditions of the insurance policy.  The said reported claim was rightly and legally held not maintainable and payable due to late intimation. So, Ops has prayed for dismissal of the present complaint.

3                 To prove his version complainant has documents as Annexure C-1 to annexure C-8 and closed his evidence. Counsel for OP has also tendered affidavit as Annexure R-X & R-Y alongwith documents Annexure R-1 to Annexure R-9 and closed his evidence

4.                We have heard learned counsel for the parties and carefully gone through the case file.

5.                Learned counsel for the OPs firstly argued that this Forum has no jurisdiction to entertain the present complaint on the ground that neither the policy in question was issued at Ambala nor alleged theft taken placed within the jurisdiction of this Forum.

                    We have perused the file that it is clear that the vehicle in question has been registered by Registering Authority Ambala as per Annexure C-1. In the cover note premium paid for the insurance has been shown as cash amounting to Rs.8100/- (Annexure C-2) but the cover note has been got  issued from Head Office of the Axa General Insurance Co., Benglore. It is not possible for the complainant to get the insurance cover note issued from a place which is situated around 2000k.m away from Ambala which shows that the premium has been collected by the agent of Insurance Co. at Ambala. So, we presumed that the cover note has been received at ambala. Hence, we have no hesitation to hold that this Forum has territorial jurisdiction to entertain the present complaint.

                   Admittedly, the vehicle in question was insured by the Op for the period w.e.f. 15.05.2012 to 14.05.2013 and vehicle in question was stolen on 16.05.2012 in the night and in this regard, FIR was already lodged on 17.05.2012. The OPs have repudiated the claim of the complainant on two grounds as per Annexure R-1 as under:-

          1.       Breach of utmost good faith

          2.       Delay intimation            ,  

                   As per OPs, they have issued to policy for relevant period against receipt of valid premium from the complainant and pre-inspection of the vehicle was also got done by the OP before issuing the policy to the complainant in order to ascertain the physical condition of vehicle. There is no dispute with regard to the effect that the vehicle in question had been stolen and the OP claimed that at the time of getting the policy. The complainant filled up the proposal form & disclosed the detail of pervious insurance polices. As per details of previous policy was                  issued by UIC vide policy No.08/381/31/11/02/00002906 for the period w.e.f. 15.05.2011 to 14.05.2012.  Proposal Form Annexure R-8 is available on the file and the OPs stated that they have got verified the particular of previous policy from the investigator of UIC and upon verification, the said policy details were found in accurate but the policy placed on the case file as Annexure R-4 issued by UIC in the name of Mohd Qasim bearing no. No.250581/31/11/01/00002906 does not match with the policy No. 08/381/31/11/02/0002906 (Annexure R-8) which the complainant had shown as his previous policy at the time of taking of new policy. The policy number mentioned in Annexure R-6 & Annexure R-8 does not match with Annexure R-4 and Annexure R-4 is no where related with Annexure R-6 & Annexure R-8 and even there is no verification report with regard to previous policy No.08/381/31/11/02/00002906 on the file which could prove that the said policy number is fake and the OPs have wrongly repudiated the claim of the complainant on this ground. Moreover, OPs have got pre-inspection of the vehicle and after being fully satisfied issued the policy. Hence, the Insurance Co. has wrongly repudiated the claim of the complainant on the ground that the complainant has given the wrong statement in the proposal form regarding previous policy.

                   Another contention of the Ops is that the complainant has informed the OPs after a period of 66 days there is a breach of the terms and conditions of the policy. Counsel for the complainant draw our attention towards the circular Ref: IRDA/HLTH/MISC/CIR/216/09/2011 dated September 20^th, 2011 issued by Insurance Regulatory Development Authority, it has been mentioned that genuine claims should not be rejected on account of delay in intimation and that the insurer’s decision to reject a claim must be based on sound logic and valid grounds. In this case, although the insurance company has pleaded that there was delay of 66 days in giving intimation but to prove the same no evidence worth the name has been led. It is proved from the file that the vehicle in question was stolen on 16.05.2012 and has not been traced out and untraced report has been accepted by JMIC, Kurukshetra (Annexure C-4). The Surveyor of the OPs has investigated the matter and submitted his Investigation report Annexure R-3 in which he never disputed about the theft of the vehicle in question. The question of breach of trust by will not affect the right of the complainant, who lost his vehicle in question. Counsel for complainant has also relied upon the judgment of Hon’ble Punjab and Haryana High Court case title Bharti AXA General Insurance Company limited Vs. Ms. Monu Yadav Vol. CLXXVI-(2014-4) Page 861 has laid down that Insurance –Theft of car –delay in lodging claim with Insurance Company of 54 days – Instructions dated 20.09.2011, issued by Insurance Regulatory and Development Authority to all the insurance Companies- As per the said instructions, this condition should not prevent the settlement of genuine claims particularly when there is delay in giving intimation or in submission of documents due to unavoidable circumstances – The companies were advised that they must not repudiate such claims on the ground of delay, especially when the policy has been promptly informed in this regard.

5.                    Keeping in view of the totality of the fact & circumstances of the present case and law laid down by Hon’ble Supreme Court case titled National Insurance Company Vs. Nitin Kandelwal IV (2008) CPJ 1 (S.C), it would be appropriate that if we allow the present complaint by giving 75% of the insured amount to the complainant on non-standard basis. Hence,  the present  complaint is hereby partly allowed with costs on non-standard basis (75% of admissible claim as that is applicable only where the breach is insignificant & not maturity fundamentals to the loss) and Ops are directed to comply with the following direction within thirty days from receipt of copy of the order:-

(i)        To pay the 75% of Insured Declared Value of vehicle in question Rs.5,10,000/- (Rs.4,50,000/- for tractor and Rs.60,000/- for trailer) which comes to Rs.3,82,500/- from the date of complaint alongwith interest @ 9% till its realization.

(ii)       Also to pay a sum of Rs.5,000/- on account of litigation charge, mental harassment & agony alongwith cost of litigation.

                        Copies of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on :13.09.2017                                                       Sd/-  

                                                                                          (D.N. ARORA)

                                                                                                 President

                                                                                          Sd/-

           (PUSHPENDER KUMAR)

                                                                                                          Member

                                                                                              Sd/-

                   (ANAMIKA GUPTA)

                                                                                                          Member